San Antonio River Authority v. Hunt

• Decision Date: 16 June 1966
• Docket Number: No. 167,167
• Citation: 405 S.W.2d 700
• Parties: SAN ANTONIO RIVER AUTHORITY, Appellant, v. Curtis R. HUNT, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 700

405 S.W.2d 700

SAN ANTONIO RIVER AUTHORITY, Appellant, v. Curtis R. HUNT, Appellee.

No. 167.

Court of Civil Appeals of Texas Corpus Christi.

June 16, 1966.

Rehearing Denied Aug. 18, 1966.

Harvey L. Hardy, Fred N. Pfeiffer, San Antonio, for appellant.

Pat Gardner and Ralph G. Langley, of Foster, Lewis, Langley, Gardner & Hawn, San Antonio, for appellee.

OPINION

SHARPE, Justice.

Appellant herein originally filed suit against certain owners of irrigated tracts of land along the San Juan Mission Acequia, individually, and as representatives of a class, for declaratory judgment to determine questions concerning the liability or non-liability of appellant to those owners for the taking, damaging or destruction of their properties in connection with the changing, straightening, widening and deepening of the channel of the San Antonio River, a flood control project. The decision of the Supreme Court of Texas on that phase of the case, in which summary judgment was involved, is styled San Antonio River Authority v. Lewis, et al, reported in 363 S.W.2d 444 (Tex.1962). The final opinion of that court was rendered on motion for rehearing, with four justices dissenting. The judgment of the Court of Civil Appeals at San Antonio, 343 S.W.2d 475 (arrived at with the Chief Justice dissenting), reversing and remanding the case for trial, was thereby affirmed by the Supreme Court.

Thereafter, by agreed order, the cross-action of appellee was severed for trial and the parties realigned with appellee as plaintiff and appellant as defendant. After jury trial, judgment was rendered in favor of appellee for $8,500.00 with interest from March 25, 1958. The parties will sometimes hereafter be referred to as 'Hunt' and 'SARA'.

At the outset we believe that consideration should be given to the context in which the instant severed proceeding was tried in the court below. Hunt is one of several individual owners of separate tracts of land in the vicinity of Old Mission San Juan Capistrano in Bexar County, Texas. That Mission was established by the Spanish Government on the east side of the San Antonio River in the year 1730, and an acequia or irrigation ditch was built there in the year 1731. Water was diverted from the river by a dam installed in the bed of the river, which raised the level of the water and permitted it to enter the San Juan Ditch by gravity flow through a headgate, thus making it available to the Mission and for irrigation of lands adjacent to the ditch. In 1824, after Mexico became an independent nation, grants of land and water were made by the Mexican Government to settlers along the San Juan Ditch. In 1958, SARA, in connection with a flood control project, destroyed the San Juan Dam and opened a new channel for the river some two hundred feet west of its original bed. The new channel is deeper than the old river bed, which is left high and dry except at flood stage when water might flow through. After Hunt and the other owners of property along the San Juan Ditch lost the gravity flow of water into it, the instant controversy arose and resulted in the filing of a suit by SARA against said owners for declaratory judgment. In that suit SARA claimed that it was not liable to the owners because they had no vested property rights which were taken, damaged or destroyed by the changing of the river channel; and that, in any event, the changing of the river channel was an exercise of the police power of the State for the consequences of which there was no liability in damages. The trial court granted the motion for summary judgment of SARA on the premise that although the owners of property along the San Juan Ditch had 'irrigation rights' which were 'vested property rights', such rights were held subject to the police power of the State which authorized the taking thereof without payment of compensation, and that such taking was, therefore, Damnum absque injuria. The Court of Civil Appeals at San Antonio, with the Chief Justice dissenting, held that the owners 'have vested property rights in the San Juan Dam, head gate and ditch, of which they cannot be deprived without adequate compensation, and that the trial court erred in holding that appellants' (owners') damages are Damnum absque injuria.' 343 S.W.2d 475. The Supreme Court of Texas restricted the issue to be decided as follows: 'The question to be decided, then, as the issue has been narrowed, is whether under the Mexican grants respondents (owners) acquired, as against the sovereign, vested property rights to have the waters of the San Antonio River continue to flow in their accustomed channel.' 363 S.W.2d 447, 448. The opinion of the Court, concurred in by five justices, answered this question in the affirmative, and held that the conduct of SARA in changing the channel of the river and diverting its waters constituted a taking of the owners' property which could not be done without payment of compensation as required by Article 1, Section 17, Constitution of the State of Texas, Vernon's Ann.St. The judgment of the Court of Civil Appeals, which had reversed the judgment of the trial court and remanded the case for trial, was thus affirmed by the Supreme Court. The opinion of the Supreme Court did not pass upon the question as to whether the owners were entitled to maintain the dam in the bed of the river in order to divert water into the ditch. The dissenting opinion in the Supreme Court, concurred in by four justices, disagreed with both majority opinions of the Supreme Court and the Court of Civil Appeals, and was based on the thesis that the owners have no vested right in and to the bed or banks of the San Antonio River, nor to the dam and headgate located therein, and that they have no right to demand that the river remain in its original channel. However, the dissenting opinion also held that the facts in existence at the time the Mexican grants were made could be considered in determining the rights of the parties, and that because of three factors, i.e., (1) that the sole source of water to supply the San Juan Ditch was and is the San Antonio River, (2) that there was in existence before and at the time of the Mexican Grants a device for raising the water level in the river to a point where it would flow into the San Juan Ditch, and (3) that a consideration was paid by the grantees to the sovereign for their dulas of water in the ditch, that the sovereign should not destroy the dam in the river which was then being used to supply the ditch with water unless some other means were devised whereby water from the river could be obtained to supply the needs of the ditch, or some compensation were paid because of the destruction of the dam. The dissenting opinion further pointed out that a means was then being provided for supplying the ditch with water which did not involve the use of the dam (i.e. pumping); that the problem as to the owners' damages might arise if and when waters were not delivered to the ditch. The record in the instant severed proceeding establishes that delivery of water to the San Juan Ditch, by pumping or otherwise, had ceased at the time of trial herein, and that the contingency discussed in the dissenting opinion was no longer present. The foregoing statement outlines the general context in which the instant case was tried in the court below and in which our decision must be reached.

In the instant severed proceeding, by answers to seven special issues the jury found in substance as follows: (1) That the Mexican Government made grants of land and water to the persons named in Plaintiff's Exhibit No. 35 in the amounts therein specified; (2) that the land and water rights belonging to plaintiff emanated from one or more of the grants made to persons named in Plaintiff's Exhibit No. 35; (3) that the San Juan Ditch Co. and its successors in title have continued to make claims to the right to such water and to make use of the same by gravity flow from May 6, 1914 to March 25, 1958; (4) that the existence of a dam or some other impounding device in the bed of the river was reasonably necessary to the enjoyment for irrigation purposes of the water granted to the users of water from the San Juan Ditch by the Mexican Government as of the time such grants were made; (5) that the existence of a dam or some other impounding device in the bed of the river was reasonably necessary to the enjoyment for irrigation purposes of the water from the ditch as of the time of diversion of the river channel in 1958; (6) that the land belonging to plaintiff suffered a decrease in its market value because of the loss of water by gravity flow in the San Juan Ditch; and (7) that the amount of decrease in market value of plaintiff's land as a result of the loss of water by gravity flow in the San Juan Ditch as of March 25, 1958, after the flow was diverted, disregarding any pumping activity of defendant, but taking into consideration the right of plaintiff to poump from the San Antonio River, was $8,500.00.

Appellant's twenty points of error and appellee's twenty three counterpoints have been grouped for briefing into nine subdivisions and will be considered by us in the same manner as follows: I. Whether a cause of action was plead by plaintiff. II. Whether a right to recover was proved by plaintiff. III. Whether special issue 2 was supported by pleadings and evidence. IV. Whether prejudicial inadmissible documents were received in evidence. V. Whether there was a variance between the pleadings and proof of ownership by plaintiff. VI. Whether plaintiff's alternative claim based upon appropriative right was erroneously submitted. VII. Whether the need for a dam was submitted without legal basis--either in the pleadings or the evidence. VIII. Whether the proper measure of damage was submitted. IX. Whether defendant was subjected to illegal special damage testimony concerning damages for loss of well water.

I.

(Whether a cause of action was...